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Sims v. Sunovion Pharmaceuticals, Inc.

United States District Court, District of Columbia

February 19, 2019

LINDA SIMS, Plaintiff
v.
SUNOVION PHARMACEUTICALS, INC., Defendant

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

         Plaintiff Linda Sims, a former salesperson for Defendant, Sunovion Pharmaceuticals, Inc., alleges various claims against Defendant for discrimination, retaliation, hostile work environment, constructive discharge, and overtime wage violations. In her wide-ranging Second Amended Complaint, Plaintiff brings at least nine charges against Defendant:

• Count 1- Racial discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.;
• Count 2- Sexual discrimination in violation of Title VII;
• Count 3- Age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634;
• Count 4- Discrimination based on disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.;
• Count 5- Retaliation for engaging in protected activity with the Equal Employment Opportunity Commission (“EEOC”) in violation of Title VII;
• Count 6- Discrimination and creation of a hostile work environment and constructive discharge in violation of Title VII;
• Count 7- Discrimination based on race, sex, age, disability, veteran status, [1] and hostile work environment and constructive discharge in violation of the District of Columbia Human Rights Act (“DCHRA”), DC Code §§ 2-1401 to 2-1411.06;[2]
• Count 8- Failure to pay overtime wages in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.; and
• Count 9- Failure to pay overtime wages in violation of District of Columbia law.

Sec. Am. Compl., ECF No. 21-2, ¶¶ 26-61. Before the Court is Defendant's [22] Motion to Dismiss in which Defendant moves to dismiss each of the counts in Plaintiff's Second Amended Complaint on various grounds relating to improper venue, failure to state a claim for which relief may be granted, and lack of jurisdiction.

         Upon consideration of the pleadings[3], the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion:

• As to Counts 1, 3, and 4 in Plaintiff's Second Amended Complaint, the Court GRANTS Defendant's motion and DISMISSES Plaintiff's claims for discrimination on the basis of race, age, and disability insofar as they are based on employment decisions and actions occurring prior to January 6, 2016 because those decisions and actions are untimely.
• As to Count 2, the Court DISMISSES Plaintiff's claim for sexual discrimination under Title VII because Plaintiff failed to exhaust that claim before the EEOC.
• As to Count 6, the Court DISMISSES Plaintiff's hostile work environment claim insofar as it relies upon discrimination on the basis of sex as Plaintiff failed to exhaust her sex discrimination claim. Additionally, the Court DISMISSES Plaintiff's claim for constructive discharge as Plaintiff failed to state a claim for which relief may be granted.
• As to Count 7, the Court DISMISSES Plaintiff's DCHRA claims in full because those claims are barred by the DCHRA's statute of limitations.
• As to Counts 8 and 9, the Court DISMISSES Plaintiff's claims for overtime wage violations because Plaintiff failed to state a claim for which relief may be granted.

         The Court otherwise DENIES Defendant's Motion to Dismiss.

         I. BACKGROUND

         For the purposes of the motion before the Court, the Court accepts as true the well-pled allegations in Plaintiff's Second Amended Complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. In the U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).

         Plaintiff Linda Sims is an African American black female veteran who was at least 40 years old during the times relevant to her complaint. Sec. Am. Compl., ECF No. 21-2, ¶ 1. From May 2006 to October, 12016, Plaintiff worked as a specialty markets salesperson and an institutional salesperson for Defendant Sunovion Pharmaceuticals, Inc. Id. As a sales representative, Plaintiff was assigned responsibility for sales and promotions to medical professionals in designated territories including the District of Columbia and Maryland. Id. at ¶ 7.

         From May 2006 to 2009, Plaintiff alleges that she reached her employment goals and quotas and regularly received ratings of “At Expectations” and “Exceeds Expectations.” Id. at ¶ 8. However, in 2009, Livia Warden, a white female, became Plaintiff's supervisor. Id. at ¶ 9. Plaintiff alleges that Ms. Warden singled out Plaintiff and subjected her to discriminatory and harassing behavior on the basis of her age, sex, race, and veteran status. Id. For example, Plaintiff alleges that Ms. Warden refused to approve Plaintiff's requests for overnight lodging when she visited her clients in Maryland even though it was Defendant's policy to approve overnight lodging requests in such circumstances. Id. at ¶ 10. Plaintiff also alleges that Ms. Warden attempted to trick her into drinking an alcoholic beverage during a regional meeting in Philadelphia despite the fact that Ms. Warden knew that Plaintiff did not drink alcohol. Id. at ¶ 11. Plaintiff further claims that Ms. Warden subtracted valuable locations from Plaintiff's sales territory, giving the locations to younger, non-black male and female representatives who were not meeting their quotas and sales goals. Id. at ¶ 12. According to Plaintiff, Ms. Warden's discriminatory and harassing treatment affected Plaintiff's rankings within the company by making it more difficult to meet her quotas and sales goal, resulting in reduced compensation as well as reduced opportunities to win money, trips, and other achievement incentives. Id.

         In late 2011 or early 2012, Plaintiff alleges that she contacted Sunovion's Human Resources Department to complain of Ms. Warden's disparate and discriminatory treatment. Id. at ¶ 13. Plaintiff also alleges that she reported the disparate and discriminatory treatment through Defendant's Ethics and Compliance Division on the electronic office portal. Id. But, Plaintiff alleges that Defendant failed to address her concerns. Id. And, Plaintiff further alleges that Ms. Warden continued to discriminate against her in many ways, such as by giving her a performance review of “Partially Meets Expectations.” Id. at ¶ 14. Plaintiff contends that Ms. Warden's treatment of her and Defendant's failure to address her complaints caused her so much stress, depression, insomnia, and anxiety that she had to go on disability leave from February to April of 2012. Id.

         Shortly after returning to work in the Spring of 2012, Plaintiff filed an EEOC complaint regarding Ms. Warden's treatment of her. After filing the EEOC complaint, Plaintiff alleges that Ms. Warden was removed as her supervisor and transferred to another section of Sunovion away from Plaintiff and was not allowed to manage in locations where Plaintiff worked. Id. at ¶ 15. As Ms. Warden was no longer her supervisor, Plaintiff alleges that she did not further pursue her EEOC complaint. Id.

         Following Ms. Warden's removal as Plaintiff's supervisor, Plaintiff alleges that she again began to receive good evaluations and incentives for her work performance. Id. at ¶ 16. However, in January 2016, Jennifer Russell, a white female, became Plaintiff's supervisor. Id. Plaintiff alleges that Ms. Russell was aware of Plaintiff's race, sex, age, veteran status, disability, and EEOC activity. Id. Plaintiff further alleges that Ms. Russell had a personal and professional mentoring relationship with Ms. Warden. Id.

         Plaintiff claims that Ms. Russell immediately began to harass and discriminate against her. Id. at ¶ 17. For example, Plaintiff alleges that Ms. Russell wrongfully placed Plaintiff on a Performance Improvement Plan and forced her to create a Developmental Plan. Id. Plaintiff further claims that Ms. Russell monitored Plaintiff's work emails and computer usage and even attempted to monitor Plaintiff's off-duty computer activity through social media. Id. According to Plaintiff, Ms. Russell also subtracted valuable locations from Plaintiff's sales territory and gave her customers to other sales representatives. Id. Plaintiff further alleges that she was chastised for reaching out to senior-level executives for guidance and mentoring. Id. at ¶ 20. Plaintiff contends that other employees not of Plaintiff's protected classes were not treated in these ways. Id. at ¶ 17. Plaintiff argues that these discriminatory and retaliatory acts diminished Plaintiff's standing in the company and reduced her chances to win money, trips, and other achievement incentives, adversely affecting her compensation. Id.

         As an example of Ms. Russell's discriminatory and retaliatory treatment, Plaintiff references a meeting in March 2016 at which Ms. Russell gave meeting participants keys with designs which she said described their personalities. Id. at ¶ 18. Ms. Russell gave Plaintiff a pink key with a diamond-like stone with the word “Diva.” Id. Plaintiff contends that the word “Diva” is often used in a derogatory way to “describe a Black women who is self absorbed and difficult to deal with.” Id. Plaintiff further contends that Ms. Russell acted in a similarly discriminatory way to the only other black employee at the meeting, disparaging him comparing him to a dancing leprechaun and to a M&M candy. Id. Plaintiff contends that Ms. Russell was playing on the “stereotype that Black people like to eat and dance.” Id.

         At a similar meeting a few months later, Plaintiff further alleges that Chuck Rodgers, a white male Head of Sales, introduced a bonus system which affected Plaintiff and the other black employee adversely as compared to the other, non-black employees. Id. at ¶ 19. According to Plaintiff, the bonus system adversely affected her rate of pay and opportunities for advancement, compensation, and other incentives. Id.

         Providing another example, in June 2016, [4] the day before Plaintiff's performance review, Plaintiff alleges that Ms. Russell told her that she was “un-coachable and the worst person she had ever coached in her entire history of coaching.” Id. at ¶ 21. During that same conversation, Plaintiff alleges that Ms. Russell attempted to get her fired by demanding that Plaintiff check her phone while she was driving a company car. Id. The next day, Ms. Russell gave Plaintiff a performance review ranking her as “Partially Meets Performance” and gave Plaintiff a Performance Improvement Plan with 60 days to improve. Id. When Plaintiff asked if being at 100% of quota for both of her sales products would bring her into compliance, Plaintiff alleges that Wolfgang Freund, Ms. Russell's supervisor, told her, “No, because I am not going to let my manager work with someone when we don't know where she is coming from.” Id. According to Plaintiff, this comment served as a constructive discharge because “Mr. Freund was stating that there was nothing that Plaintiff could [do] to come into compliance.” Id. Plaintiff further alleges that Ms. Russell refused to include Plaintiff's comments or work examples in her Official Performance Review document. Id. Plaintiff contends that the fact that she was “singled out to receive a negative evaluation as a result of not being at 100% of quota for two products was evidence of discrimination against Plaintiff based on her sex, race, age and disability, and evidence of retaliation against Plaintiff for engaging in protected EEOC activity.” Id.

         In August 2016, Plaintiff claims that she contacted Defendant's Human Resources Department regarding her Performance Review and other discriminatory and retaliatory treatment. Id. at ¶ 22. Plaintiff claims that she attempted to speak with two human resources representatives but that neither addressed her concerns. Id. Following her interactions with human resources, Plaintiff “realized that her supervisors were determined to continue to discriminate and retaliate against her and force her to quit her job.” Id. Additionally, Plaintiff contends that, due to discrimination and retaliation, her stress-related symptoms returned, and her doctor advised her that the resultant stress may lead to a stroke or other health complications. Id. On September 19, 2016, Plaintiff submitted her resignation which became effective on October 1, 2016. Id.

         On November 1, 2016, Plaintiff filed a complaint with the EEOC alleging discrimination and retaliation. And, on August 21, 2017, the EEOC issues Plaintiff notice of her right to sue. Id. at ¶ 3. Plaintiff filed this lawsuit against Defendant on November 11, 2017. See generally Compl., ECF No. 1.

         II. LEGAL STANDARD

         A. Dismissal Under Rule 12(b)(6)

         Under Federal Rule of Civil Procedure Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         B. Dismissal ...


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